1 Jason W. Hardin, Esq. Rachel G. Terry, Esq. FABIAN & CLENDENIN, P.C. Managing a Large Case Document Review Orange Legal Technologies Intermountain e-Discovery Conference 2009 Thursday, May 28, 2009 W. Hardin, Esq. G. Terry, Esq. & CLENDENIN, P.C. a Case Document Review Legal Technologies e-Discovery Conference 2009 May 28, 2009 Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f42 Jason W. Hardin, Esq. Jason is a trial attorney and litigator. He is a shareholder and member of Fabian’s Board of Directors. He has been involved in all aspects of high-profile, big-ticket litigation and has successfully represented clients in many industries and sectors, with significant experience in the areas of complex business and commercial disputes, energy, mining and electric utilities, and construction and development. Jason recently represented Murray Energy Corporation and its subsidiaries and helped orchestrate the settlement of all of the civil lawsuits stemming from the August 2007 accidents at the Crandall Canyon Mine. Rachel George Terry, Esq. Rachel is an associate with a broad background in complex commercial litigation, with an emphasis on litigation arising from business torts, contract rights, mining and utilities, and real property. Her practice also focuses on appellate law, and she has experience handling cases before the Utah Supreme Court and Tenth Circuit Court of Appeals. From 1919 when Fabian & Clendenin was started, to 1926 when Harold Fabian helped the Rockefeller Family acquire the land to create Teton National Park, to the present, Fabian has had local, national and international impact. Our attorneys enjoy expertise in a wide range of practice areas. Each of us, individually, recognizes the legacy of quality and integrity established by our founders. As a firm and as individuals, we are committed to always doing our best as we honor the tradition of the Fabian name. The practice of law obligates us to public service at every opportunity. But foremost, our focus is on our clients — to whom we offer our dedication. Fabian & Clendenin, P.C. & Clendenin, P.C. 1919 when Fabian & Clendenin was started, to 1926 when Harold Fabian helped the Family acquire the land to create Teton National Park, to the present, Fabian has had national and international impact. Our attorneys enjoy expertise in a wide range of practice Each of us, individually, recognizes the legacy of quality and integrity established by our As a firm and as individuals, we are committed to always doing our best as we honor tradition of the Fabian name. The practice of law obligates us to public service at every But foremost, our focus is on our clients — to whom we offer our dedication. W. Hardin, Esq. is a trial attorney and litigator. He is a shareholder and member of Fabian’s Board of He has been involved in all aspects of high-profile, big-ticket litigation and has represented clients in many industries and sectors, with significant experience in the of complex business and commercial disputes, energy, mining and electric utilities, and and development. recently represented Murray Energy Corporation and its subsidiaries and helped the settlement of all of the civil lawsuits stemming from the August 2007 accidents at Crandall Canyon Mine. George Terry, Esq. is an associate with a broad background in complex commercial litigation, with an on litigation arising from business torts, contract rights, mining and utilities, and real Her practice also focuses on appellate law, and she has experience handling cases the Utah Supreme Court and Tenth Circuit Court of Appeals. Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f43 -Getting a large document review project -Planning and preparing for the project -Conducting a thorough, accurate and efficient analysis -Performing quality control and readying the database for production and use Topics to Be Covered to Be Covered Getting a large document review Planning and preparing for the Conducting a thorough, accurate efficient analysis Performing quality control and the database for and use Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f44 “Getting” a Large Case Document Review Project -What does a large case document review typically entail? -What firms typically conduct these projects and why? -How can Utah law firms compete for – and get – large cases and large case document review projects? -Expertise and experience -High quality work product -Cost-effectiveness -Efficiency and timeliness -i.e., better, cheaper, faster Getting” a Large Case Document Review Project What does a large case document review typically entail? What firms typically conduct these projects and why? How can Utah law firms compete for -and get -large and large case document review projects? Expertise and experience High quality work product Cost-effectiveness Efficiency and timeliness i.e., better, cheaper, faster Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f45 -From this point forward, ask and keep asking: -“Will a court find this review and its particulars reasonable?” -“Do our choices and actions comply with the rules, and can we defend our choices and actions?” -This is a rapidly evolving area of law -Always update research and requirements before beginning a new review -Construct and shape document review accordingly Guiding Principles Principles From this point forward, ask and keep asking: “Will a court find this review and its particulars “Do our choices and actions comply with the rules, can we defend our choices and actions?” This is a rapidly evolving area of law Always update research and requirements before a new review Construct and shape document review Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f46 Planning and Preparing for a Large Case Document Review Project -Good planning and preparation are critical -Scope planning -Issue planning -Logistical planning -To the extent possible, learn your case at the outset -Interview key witnesses -Immediately gather and analyze key documents -Analyze claims and complaints -Research key legal issues regarding possible claims and defenses and Preparing a Large Case Document Review Project Good planning and preparation are critical Scope planning Issue planning Logistical planning To the extent possible, learn your case at outset Interview key witnesses Immediately gather and analyze key documents Analyze claims and complaints Research key legal issues regarding possible and defenses Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f47 Planning and Preparing – Scope Planning -Carefully assess the scope of the project -Responding to specific requests? -Preparing for civil discovery generally? -Complaints filed or claims made? -Possibility of other proceedings, like administrative or criminal? -Potential witnesses -Extent of hard copy documents -Extent of ESI and Preparing -Scope Planning Carefully assess the scope of the project Responding to specific requests? Preparing for civil discovery generally? Complaints filed or claims made? Possibility of other proceedings, like or criminal? Potential witnesses Extent of hard copy documents Extent of ESI Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f48 Scope Planning (continued) -Gather and preserve potential evidence -ESI -Images of hard drives and/or servers -Individual files or groups of files -Hard copies of documents -Videos, photos, etc. -Err on side of over-inclusion -Choose analysis program(s) /vendor(s) -Size dependent, to a degree -Familiarity -Filtering versus reviewing Planning (continued) Gather and preserve potential evidence ESI Images of hard drives and/or servers Individual files or groups of files Hard copies of documents Videos, photos, etc. Err on side of over-inclusion Choose analysis program(s) /vendor(s) Size dependent, to a degree Familiarity Filtering versus reviewing Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f49 Planning and Preparation – Issue Planning -Create comprehensive list of factual and legal issues -Create list of substantive tags based on issue list -Create list of administrative tags -Tags that trigger quality control review (“potential” versus “confirmed”) -Hot Docs -Privileged and CBI -Redaction needed -Create detailed tag descriptions -Do not be afraid to change, delete or add tags or tag descriptions as review progresses -Be sure to document and track all such changes and Preparation -Issue Planning Create comprehensive list of factual and legal issues Create list of substantive tags based on issue list Create list of administrative tags Tags that trigger quality control review (“potential” “confirmed”) Hot Docs Privileged and CBI Redaction needed Create detailed tag descriptions Do not be afraid to change, delete or add tags or tag as review progresses Be sure to document and track all such changes Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f410 -Assess team requirements and build team -Efficient staffing -Size, time and cost dependent -Expertise? -In-house versus contract attorneys -If contract attorneys, hire yourself versus temp service -Team leader(s) -Shareholder(s) who has substantive knowledge, who grasps all legal and factual issues, who understands the overall case strategies and sensitivities, and who has some leadership skills -Team manager(s) and quality control -Associate(s) with substantive knowledge -Sociable teachers; firm; able to keep control -Logistical support personnel -Someone with detailed knowledge of program(s) /vendor(s) is invaluable -in-house or contract paralegal Planning and Preparation – Logistical Planning and Preparation -Logistical Planning team requirements and build team Efficient staffing Size, time and cost dependent Expertise? In-house versus contract attorneys If contract attorneys, hire yourself versus temp service leader(s) Shareholder(s) who has substantive knowledge, who grasps all and factual issues, who understands the overall case and sensitivities, and who has some leadership skills manager(s) and quality control Associate(s) with substantive knowledge Sociable teachers; firm; able to keep control support personnel Someone with detailed knowledge of program(s) /vendor(s) invaluable in-house or contract paralegal Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f411 Logistical Planning (continued) -Assess space and computer needs -Create budget (or update previous budget) -Create timeline and milepost goals -Create background binders for team – another invaluable resource -Procedures and restrictions -Tags, tag descriptions and (maybe) issue list -Common acronyms, key words and definitions -Factual summary of case -Cast of characters -Organizational chart -Key docs and pleadings Planning (continued) Assess space and computer needs Create budget (or update previous budget) Create timeline and milepost goals Create background binders for team -another resource Procedures and restrictions Tags, tag descriptions and (maybe) issue list Common acronyms, key words and definitions Factual summary of case Cast of characters Organizational chart Key docs and pleadings Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f412 -Create database -Upload all ESI, photos, videos, etc. -Image and upload all hard copies of documents -TIFFs, maybe PDFs -To OCR or not to OCR? -Keep an open line of communication with vendor from this point on Logistical Planning (continued) Planning (continued) Create database Upload all ESI, photos, videos, etc. Image and upload all hard copies of documents TIFFs, maybe PDFs To OCR or not to OCR? Keep an open line of communication with from this point on Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f413 Conducting a Thorough, Accurate and Efficient Analysis -Filter the database -Client input and assistance -Time, custodian and file type filters -Content filtering (keywords and phrases) -Balance cost and burden against accuracy and reasonableness during filtering -Document how and why filtering was done and any subsequent changes a Thorough, and Efficient Analysis Filter the database Client input and assistance Time, custodian and file type filters Content filtering (keywords and phrases) Balance cost and burden against accuracy reasonableness during filtering Document how and why filtering was done any subsequent changes Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f414 -Initial team training -Weekly team meetings -Who should attend? -What should be covered? -Open lines of communication: -Continuous training -Timely feedback -Training and feedback help avoid “re-dos,” maximize efficiency and decrease costs The Analysis (continued) Analysis (continued) Initial team training Weekly team meetings Who should attend? What should be covered? Open lines of communication: Continuous training Timely feedback Training and feedback help avoid “re-dos,” efficiency and decrease costs Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f415 -Team managers should monitor progress and answer questions daily, if not hourly -Create log of questions and answers -Review must be malleable -Be prepared to get sidetracked, but also be prepared to deal with getting sidetracked -Stay on budget and meet mileposts -Cut nonperforming team members -Keep client updated on changes to budget or timeline The Analysis (continued) Analysis (continued) Team managers should monitor progress and questions daily, if not hourly Create log of questions and answers Review must be malleable Be prepared to get sidetracked, but also be prepared deal with getting sidetracked Stay on budget and meet mileposts Cut nonperforming team members Keep client updated on changes to budget or timeline Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f416 Performing Quality Control and Readying the Database for Production and Use -What is “quality control”? -A system that: -Promotes accuracy by preventing overand under-inclusion -Creates consistency in tagging and categorizing -Confirms privileged and CBI materials -Allows for accurate redactions to be made when appropriate -Resolves other issues and questions Quality Control and the Database for Production and Use What is “quality control”? A system that: Promotes accuracy by preventing overand under-inclusion Creates consistency in tagging and Confirms privileged and CBI materials Allows for accurate redactions to be made appropriate Resolves other issues and questions Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f417 The Layers of Quality Control -Team Managers’ QC -Review all documents tagged “QC Required” -E.g., all potential hot docs, privileged docs, CBI, and docs in need of redaction -Searches and random checks -Statistics review -Pre-production QC Steps -Certain words or phrases trigger QC review by team managers -Dummy checks (e.g., documents marked both relevant and irrelevant or marked neither) that prompt QC review by team managers -Team Leader’s QC -Word searches and random checks following team managers’ QC and pre-production steps Layers of Quality Control Team Managers’ QC Review all documents tagged “QC Required” E.g., all potential hot docs, privileged CBI, and in need of redaction Searches and random checks Statistics review Pre-production QC Steps Certain words or phrases trigger QC review by managers Dummy checks (e.g., documents marked both and irrelevant or marked neither) that QC review by team managers Team Leader’s QC Word searches and random checks following managers’ QC and pre-production steps Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f418 Production and Use -Initially produce redacted images along with: -Explanation for redactions -Privilege log -If opposing party is entitled to more, may have to produce native files -Preserve native files until case closed and Use Initially produce redacted images along with: Explanation for redactions Privilege log If opposing party is entitled to more, may to produce native files Preserve native files until case closed Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f419 Thank you! you! Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=db80bd1e-5b61-4a87-b137-71add62d90f4

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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